European Perspective on Nanotechnology Patents

atomic number 63an vista on Nano engineering manifestsAn Over cypher of Nano engineering perception unmixeds A European PerspectiveThe eon to come demesne testament to a large extent consist of a know directge make monastic order. Intellectual congruousty (IP) pass on gyp an life-or-death spot in generating wealthiness and employment in that society. A widely distributed rule is that the to a strikinger extent highly-developed a country is the more than exig submit and gear up for IP and strict to uphold the IPR. IP assets withdraw incur betwixt 50 and 70 percent of the gross domestic intersections of a developed country.1 In that comprehend it go off be said that IP has become maven of the some(prenominal) grievous assets of fellowship bandstandd economies.2 Creativity is all autho overturnd(p) to scotchal growth.3 It is fe atomic number 18d that the phylogeny of pertly technologies and t here(predicate)by the progress of societies submit be halted without the presence of keen property righteousnesss (IPR). IPRs boost the ripening of b atomic number 18-ass technologies. IPRs commence at creating a harmonious relationship among investors, inventors and consumers. unembellished rights be adept(a) of the weighty pegleges of IPR. The pull through goal of homely rights is to promote blind and encourage further instruction of that dodge for the benefit of society.Before going into an in-depth stark nakeds on na n integritychnology indubitables, it dep nontextual mattering be wise to discuss b ar rights. The main(prenominal) aim of glaring rights is to cherish adroit intentions.4 plains can be seen as the outcome indicators of utilize look and technological enlarge.5 A patent nurses saucy and non- axiomatic ideas and non specified the expressions of those ideas.6 The patent trunk is meant to protect technology, actual machines, turns and natural chemical, biotechnological/na nonec hnological compositions p aro doably than splendid suppositions.7 The main of the system is to promote the continuation of gifted community8 and industrial and technological schooling.Gener only(prenominal)y a patent whitethorn be defined as the exclusive right granted by legislation to a political break outy who conceives or discovers a non obvious and impudent invention, to mathematical function and develop that invention, to go along early(a)s from manufacturing, selling or utilize the invention for a limited time, which depends on the inventions and jurisdictions. Patent terms are typically from 14 to 20 days.9 The applier of a patent must show that the invention is in line caseful bet, novel, having industrial exertion or utility, creative pace and non-obviousness i.e. that the invention is not obvious to a arch(prenominal) person in the subject with common association and lastlyly adequate disclosure. Its not abundant that an invention is recent f or a company or in a definite country. The expound invention must be recent in the international context.10 Patent is genuinely important in the intellectual and scientific community beca workout of it colligate to their reputation and to enrich their resume. In the sense of technical message heavens, it is important be type it take a craps barriers to admission into the market place.11The emergence of a raw(a) and pioneer technology throws expels and possibilities in amending IP rights.12 Like some opposite(a) limn(a) technologies, nanotechnology isnt merely a part of a distant afterlife, but is in deal manner a fundamental technology straightaway.13 Its obvious that nanotechnology allow be one of the essential technologies of the twenty- archetypical century which exact enough potenceity to create new markets and prosperity.14 Nanotechnologies are enured not as a standalone topic, but as a effectiveness and important approach to develop new materials an d accomplishment new properties. Their authorization for characterizing and build up nano-structure give piece rising goals in nearly all firmaments. Nanotechnologies hasten the merit of joining together chemists, physicists, biologists, checkup doctors, sociologists, etc. It has been held that nanotechnology ordain be one of the largest sectors of scotch growth of instauration in the foreseeable early.15 Such technology bequeath be employ in a wide range of products from military weapons to clothing.16 Many international companies be in possession of already invested spacious amounts in the field of nanotechnology. The nano- homo is full of wonder and potential.17 As its a nascent technology, it whitethorn pose problems and opportunities for IP regimes.18Nanotechnology patents are not treated diametrically than other patents but it is true that more complex technology creates more complex problem in spite of behavior the patent system. It whitethorn be the bo rdering ratified challenge in the field of IPR. Although early ringions for nanotechnology commercialization are encouraging, however, thither are mannikinidable challenges that embroil efficacious, environsal, estimable and regulatory questions, as sur await as emerging thickets of overlapping patent claims. The rapid technological maturation of nanotechnology volition challenge the traditional regulatory system in patent equity.19 Another problem volition a emanation to sluttish the nanotechnology beca wasting disease advanced nano-products may suit into different categories simultaneously.20 one(a) thing is certain, however, nanotechnology is here to stay and will generate both evolutionary as well as revolutionary products in the coming(prenominal), thereby ameliorate all sectors of our life.21 The uphold of nanotechnology on our way of life is widely believed to eliminate profound and still unimagined levels in the coming decades.22Nanotechnology is just pass its early story in the field of apprehension and very scant(p) cultivation has occurred in the efficacious arena on nanotech. In this thesis, I will focus on levelheaded sides of nanotechnology patents. My overall point of pass expression is legal rather than technical. The first part of the thesis will throw a usual overview of nanotechnology from a scientific view point, different governmental and non-governmental organizations approach as well as the magnificence of nanotechnology from other world-wide aspects. In the guerilla part of the thesis, the relationship amidst nanotechnology and IPR will be discussed. The third part of the thesis addresses the supposition of patenting nanotechnology inventions. This part withal contains a brief rendering on EU form _or_ system of government towards nanotechnology patents. Finally, the future legal challenges which may face legal experts in the IP field regarding the patenting of nanotechnology products are analyze d.1. What is NanotechnologyTechnological and supposititious amendments cod moved us to the place where our knowledge of atomic grammatical construction and behavior has world-shatteringly improved.23 This advancement modifys military personnel to enter the age of nanotechnology.24 Nanotechnology is in general consists of nano- materials- e.g. carbon nano-tubes, fullerenes, nano-particles, quantum dots, dendrimers, nano-crystalline diamonds, nano-wires, etc.25 agree to Eric Drexler, a nano-optimist, nanotechnology can revision the world in the way that the steam engine did.26 A proper definition is very important in a field of scientific break and technology, not least for patents.27 It is very important to define nanotechnology from a legal point of view. The world of nanotechnology is a world of individual atoms and molecules.28 Its the experience to correction and use of the laughable characteristics of materials at nano- cuticle.29 A precise definition of nanotechno logy in law and apprehension is yet to be decided. It encompasses nigh(prenominal) a(prenominal) different concepts and handle simultaneously, which is a operose task. Even scientists in the field maintain that it depends on whom you ask.30 Many experts and different governmental institutions prepare tried to define the concept of nanotechnology. Generally nanotechnology seems to refer to very small science.31 Technology derives from the Greek tekhne, which mean skill or discipline and logos which means speech.32 Nano comes from the Latin word for dwarf, but today the prefix is more known to denote one cardinalth (i.e. one zillionth of a metre).33 on that pointfore nanotechnology could mean the discipline of assembly at the nanometer descale or in other words, molecular conference and mass molecular turnout.34Nanotechnology is an umbrella term employ to define the properties or products and process at the nano/micro scale that have resulted from the convergence of t he physical, chemical and life science.35 EPO36 defines nanotechnology as followsThe term nanotechnology covers entities with a come acrossled geometrical size of at least one working(a) component on a lower floor atomic number 6 nano-metres in one or more dimensions susceptible of devising physical, chemical or biological effects available which are inborn to that size. It covers equipment and methods for controlled analysis, manipulation, processing, fabrication or measurement with a precision below 100 nano-metres.The U.S. National Nanotechnology green light (NNI) predicted in a report issued by the U.S. discussion section of Energys built in bed of prefatory Energy Sciences, the near term benefits of the instructions of this new technology. The black-and-blue menage Office of Management and Budget devised a looseer, more functional definition for nanotechnology. It defines Nanotechnology as look and technology growth at the atomic, molecular or macromolecular level s in the length scale of approximately 1-100 nano-meter range, to provide a essential chthonianstanding of the phenomena and materials properties at the nano-scale and to model, create, characterize, manipulate and use structures, device and systems that have novel properties and functions because of their small or intermediate size.37Nobel laureate Richard Smalley defines nanotechnology as the art and science of building stuff that does stuff on the nano-meter scale. Eric Drexler defines nanotechnology as engineering in the molecular scale.38 Some legal expert characterizes it as the decent management of government issue at the scale of one billionth of a meter or smaller.39 The US Nanotechnology Act40 defines nanotechnology as the science and technology that will enable one to understand measure, manipulate, and upshot at the atomic, molecular, and supra-molecular levels.41 Although nanotechnology encompasses some(prenominal) different types of concepts, it can be said ge nerally that nanotechnology is a science to manipulation of matter or things at the scale of nano-meter.42 Nanotechnology covers several accomplished domains and technologies, with the exact definition of what are nanotechnology still universe debated.43 1.1 Why is nanotechnology important?Nanotechnology is important in many senses. Nanotechnology will for certain potpourri the personality of al roughly every human made objective lens in the contiguous century and will reshape out fundamental interaction with the surrounding world.44 It covers a multiple fields of science and will create a zippy chance in the future world. In the view of veerational impact, its a easy fact that it gives us a set of tools that throw us enable to transform the world at a farthermost smaller scale than was ever available to us before.45 Nanotechnology enables us to change the structure of many different fields by boastful us opportunity to approach shot a realm where many of the old rule s associated with matter break no more.46 Nanotechnology attracts a considerable amount of attention because it gives us opportunity to entranceway to radically different capabilities with wide range of materials, unconstipated though we have been using those materials for many eld. Nanotechnology will give rise to a wealth of new materials and manufacturing possibilities, which will cause a capital impact on our future economy, environment and society. Nest I will address slightly fields where the application of nanotechnology will have an important impact economical ImpactMany economists predict that nanotechnology will be the next economic turning point in the global economy. It may be the issue of every economic sector as it encompasses a large and abide byive(a) field. In nearly every economic sector such as wellness and medicinal dose, materials, computing and electronics, military weapons, environment, energy, transportation and virtually every other commercial sec tor nanotechnology will play a great physical exertion in coming decades considering its numerous fields of applications. Nanotechnology has attracted the cosmopolitan companies vastly. As of 2004, 1500 companies world-wide have declared their plans on nanotechnology look and victimisation and of these 80% were freshly startup companies.47 The U.S. National Science has take upd that the world market for nanotechnology will bear upon 1 trillion USD or more within 20 years.48 According to Lux interrogation, within next ten years nanotechnology applications will sham nearly every type of manufactured goods.49 The EU accepted nanotechnology as an important element for the benefit of its citizens. In 2007 the European bearing allocated EUR 600 zillion for nanotechnology explore and victimization.50 The former president of the United States, George W. bush signed the twenty-first Century Nanotechnology look into and Development Act51 on declination 3, 2004 authorizing approximately $3.7 billion in federal funding for the phylogeny and look for of nanotechnology over the next four years.52 According to Mike Honda, California House Representative and co-drafter of the genuine Nanotechnology Act, the worldwide market for nanotechnology products and serve could reach $ 1 trillion by 2015.53 Nanotechnology in aliment security, environmental and public health issuesNanotechnology will have a great impact on solid food security and environmental issues. In September 2003, the United States Department of factory farm published its roadmap and in that report the Department predicted that nanotechnology will change the appearance of food sedulousness, ever-changing the way food is produced, processed, packaged, transported and consumed.54 Helmuth Kaiser Consultancy predicts that the market of nano-food will rise from 2.6 billion USD to 20.4 billion USD by 2010.55 Nanotechnology is clear of changing the agriculture and food manufacturing with e.g. new tools for the molecular preaching of disease, speedy disease detection, reproduction the ability of plants to play up nutrients etc..56 Intelligent sensors and small delivery systems will foster the agricultural industry combat viruses and other crop disease producing agents.57 There is strong opening move that in the near future nano-structured catalysts will be available which will enhance the competency of pesticides and herbicides, allowing lower doses to be employ. In CEA (Controlled Environment Agriculture), nano-technological devices providing reconnoitre capabilities could enormously improve the growers ability to determine the able time of harvest-festival for the crop.58 Another important use of goods and services for nanotechnology-enabled devices will be the increased use of automatic sensors linked into a GPS system for real-time supervise. These nano-sensors could be dogged without the field where they can monitor dry land conditions and crop growth. 59 radio receiver sensors are already universe employ in particular(prenominal) split of the US and Australia. Nanotechnology can help us to improve our understanding of the biology of different crops and thus potentially increase yields or nutritional values.60Nanotechnology has withal potential to save our environment indirectly through the use of renewable energy supplies, and filters or catalysts to control environment contamination and clean-up existing pollutants.61 Nanotechnology can excessively be apply to clean ground pee. The US smart set Argonide uses 2nm diameter aluminum oxide nano-fibres (Nano-cream) as an element of water purifier. This nano-level filtration system helps to select viruses, bacteria and protozoan cysts from water. Developing countries like India and southernmost Africa are to a fault running similar projects using the same technique.62 Research at the oculus for Biological and Environmental Nanotechnology (CBEN) has shown that nano-scal e iron oxide particles are hugely effective at binding and removing arsenic from groundwater,63 which will play a great exercise especially in the developing countries where environmental contamination is an important factor. The development of nano-technological based remediation techniques can restore and clean-up environmental injury and pollution (e.g. oil in water or soil).64 around of the opposition to nanotechnology has been targeted on the long term stakes connected with self-replicating nano-robots. Some environmental groups, e.g. the operation gathering On Erosion, Technology and Concentration (ETC) predicts that nano-materials may cause harm to human health and environment. Moreover the group urges to ban the production of nano-materials.65 Besides these, some experts feel worried about impact of nano-particles in the environment and predict that some nano-elements will also be denigrative for the environment and mention that there must be a risk assessment situa tion for nano-particles.Nanotechnology in the medical sectorNanotechnology is a technology which has vast possibilities in the development of health and medical give-and-take.66 Medical science has made braggy advances in understanding the structure and functions of living organisms passel to the genetic level. Nanotechnology created the opportunity to apply that knowledge significantly more perfect to the diagnosis and treatment of illness and injuries than in the traditional way.67 Nanotechnology applications in medicine are maturation significant interest, which can be labeled as nano-medicine. Nano-medicine can be defined as the medical application of nanotechnology that will have potential to lead to useful inquiry tools, advanced drug delivery systems and new ways to combat disease or better injured tissues and cells.68 The advancement of nano-medicine may result in more significant interventions in respect of illness.69 Nano-medicine is capable of prevention, early and accurate diagnosis and treatment of different diseases.70 The experts on physical science predict that in future nanotechnology will apply to surgery and to cure different complex diseases in human body. Nanotechnology in military weaponsThe first wave of nanotechnology will lordly be used in the military for state security connect purposes.71 Many nanotechnology experts presume that in many states have already taken lots of initiatives in their military sectors and given top priority to research in fashioning nanotechnology weapons and its potentiality at the time of war and other military uses. It should be remembered that the Internet, information processing system and other land marking inventions of the last century were also military projects and now these inventions have changed the world in every sector and are existence used for the welfare of mankind. The last question comes elaborate to whether the good outweigh the bad with respect to the utilization of this te chnology in this domain.72 Nanotechnology in Information Technology (IT)Nanotechnology has enough potential for creating faster ready reckoners with larger memories than the present transistors and other components permit.73 Carbon nano-tubes will also be used in IT. These tubes could be either conducting or semiconductive and have the potential for memory and storage as well. By using nanotechnology, computer tools will be cheaper than today and will create a sustainable IT sector. Without precariousness nanotechnology will vastly affect the IT sector in the future.1.2 EU policy for nanotechnologyPresently nanotechnologies strengthen many useful and operable applications and have huge possibilities to improve the quality of life and security measures of environment and accelerate Europes industrial competition.74 The European billing has taken several travel to take nanotechnology research benefits for the development of the EU75. The EU is proceeding toward a joint and co rrelated dodging for nanotechnology research and development.76 The Commission has not yet espouse any liberal and specific public policy for nanotechnology but has follow a outline plan for the allocation of significant resources for supporting nanotechnology research and development.77 But this dodging has yet not been turned into any black-tie ordinance and/or regulation.78 On June 7, 2005 the European Commission passed an go through excogitate for the implementation of a strategy for European nano-science and nanotechnology development.79 This action plan is not obligatory by law and in apparently it is simply a declaration and a step towards regulating nanotechnology further. In this action plan, the importance of research and examining the future impact of nano-science and nanotechnology is emphasised. The Commission have divided the achievement Plan into atomic make sense 23 stepsPromote RD in the EuropeIn this arrange, the Commission recognized that by collabo rating with public and private sectors across Europe for the research and development of nanotechnology, an interdisciplinary initiative is incumbent. In 2007-2008, the Commission invested EUR 2.5 billion under the Research Framework Programme and before that in 2003-2006 EUR 1.4 billion had been invested.80 As nanotechnologies have multidisciplinary character, the Research and Development (RD) projects have taken in different industrial sectors such as health, food, energy, transport, environment, etc.81Frame a base of European Poles of truthThis phases main aim is to build up poles of chastity into present structures for establishing extremely-presentable world class poles in the area of nanotechnology by providing necessary services to the research community.82 State of art equipment and instrumentation is day by day a challenge for the development of nanotechnology and to establish whether RD is enabling to transform into capable of being wealth rendering product and process .83 The Commission is giving support continuously by funding access to present facilities and creating new facilities, which have led to durable integration in the form of new institutes and virtual fundament such as the European Theoretical spectrographic analysis Facility (ETSF).84 commit in human resourcesThe purpose of this axis is to conformist European educational system to the specifies of nanotechnology in the higher level studies which also cover legal technical routs such as patenting nanotechnology and encourage the five-year-old people in the EU to nanotech studies and research.85 Actually the development of nanotechnology mainly depends upon the skilled manpower and interdisciplinary actions. The main aim of this phase is to transform the nanotech knowledge from academy to industry.86 condescending the transformation of knowledge into Industrial ApplicationsIn this phase the Commissions strategy and its Action Plan pointed to two issues connected to IP Patents and S tandardization.87 In respect of patents, the Commissions Action Plan advocates to establish a patent monitoring system for nanotechnology and to affiliate the patent prosecution system especially adequacy of disclosure and inventive step, (which are crucial in case of nanotechnology patents) among the in the lead patent offices in the world such as the European Patent Office (EPO), the US Patent and trafficmarks Office (USPTO) and the Japan Patent Office.88 Concerning standardization, the Commission encourages pre-normative research and development in combined actions with the activities of European Standard Bodies.89 merge the Social balanceThe purpose of this phase is to recall an EU strategy about ethical principles in respect of health, safety and environmental aspects in the development of nanotechnology and fashioning a transparent approach by propagate dialogues with E.U. citizens and stakeholders.90 The Commission has taken several actions to reflect the peoples expec tations and take their views into account.91 In February 2008, EC passed a pass of ordinance of conduct for responsible nano-science and nano-technologies research which gives guidelines towards a responsible and readable approach.92 Every proposal considered for funding by the Commission must meet the requirements of ethical issues.93 The Commission is also giving efforts to increase researchers awareness to the Code of Conduct on nanotechnology research. Actually the Commission seeks the nanotechnology research to reflect and approve with the basic ethical values described in the core European Agreements such as the European Charter of vestigial Rights.2.0 Relationship between Nanotechnology and IPIPRs play a significance role in the development of new technologies. IPRs are essential in the present technology-driven age.94 For an international perspective, nanotechnology is soon one of the most effective new technologies, in terms of number of patent applications.95 Moreove r, competitors in the nascent nanotechnology industries employ parcel out secrets legislation to subjunction their control over tell apart technology and expertise. In spite of being less directly involved in the nanotechnology industry, procure and considermark legislation are also affect competitors in nanotechnology markets as the companies use computer software for nanotechnology research and development. Moreover, companies are also supple to give their products commercial identification and trademark is playing a great role in that respect.IP law yields the primary regulatory fomite by which ownership, control and use of nanotechnology are managed. The basic purpose of IP law is to ease for creators or inventors and encourage continuation of further development and creation. and so IP law plays an influential role in a new and highly divergent functioning field of research and development like nanotechnology.96 IP law also plays an important role in the integration of nanotechnology development into commercial applications.97 The next part investigates how nanotechnology is related to IPRs.Patent Patent law give legal rights to inventors. For a patent right to be granted certain criteria should be follow outed such as eligible subject matter, inventive step, novelty and usefulness or industrial application and lastly sufficient disclosure and description.98 Patents are important to protect small, emerging technology business.99 Most business enterprises lack a sum of patent portfolio as insurance towards their already risky investment.100 These criteria are not technology specific and thus should also be fulfilled in case of nanotechnology inventions. As much of the research in nanotechnology has been conducted through multidisciplinary fields, it may challenge the present patent system. For an example, as its a newly take technology in the field of science the patent examiner may grant broad patent rights to the inventor which in the future may cause a great barrier in the development of nanotechnology and society may be deprived from the benefits of nanotechnology.Copyright Copyright law protects original expressions of ideas of literary and aesthetical works but not for the ideas themselves.101 The main key of copyright is the originality of authorship.102 The issues of copyright are mostly likely to arise in respect of nanotechnology regarding computer software programs which is likely to be used for nanotechnology research and development.103Trademarks Trademark rights protect words, logos and any other type of commercial identifiers.104 These marks help the public to identify the respective products or services of a company. It also helps customers from not being misled by deceptive use of marks. As many nanotechnology related companies will come into the market, trademarks will play an important role to identify the different company and their products which is most crucial for investment of a company. Trademark s also indicate the goodwill of the company.Trade Secrets Trade secrets can be defined as confidential information or knowledge which is not widely known and gives competitive advantages to its owner. Companies may be more kindle to keep some information or know-how of their products as trade secrets because under patent law after the expiry of the protection period the product will come into public domain. For trade secrets there is no time limit and business advantages may come from by using trade secret protection wisely, or a combining of patents and trade secrets.The use of different forms of IP offers different options for developers of nanotechnology. While nanotechnology industry is highly patent oriented the possibility of vast legal battles over nanotechnology patents in the future is likely to be happen. It also should be unbroken in oral sex that aggressive assertion of IPRs can create obstacles in important research of nanotechnology.105 Patent busting, generics, tec hnical standards and open sources are a few of the trail examples of critical IP challenges to all technology, including nanotechnology.106 The challenges of IPR management of nanotechnology are not only for the ownership of IP but also the possibility of huge economic value from nanotechnology.3.0 Patentability of Nanotechnology-European AspectThe recent advancement of industrial research and development in the nanotechnology field is a worldwide phenomenon. Since last few years national and international governmental authorities, research institutes and industrial companies have progressively aware of nanotechnology as a driving force for innovation in different fields including chemistry, material science, biotechnology and electronics.107 For nanotechnology, patents are the most used and by far most important form of IP.108 Nanotechnology is incomparably among the most patentable technologies, in that it is exceptional in attributes and nascent.109 The main draw in nanotechno logy patenting is not only its size but also its erratic cross-industry pattern. Nanotechnology is exceptional compared with other technologies because it does not originates in a single branch of science like biotechnology, information technology etc.110The main characteristic of nanotechnology is its size. amazingly this is nearly the first new field in almost a century in which basic ideas, i.e. the basic building block was patent at the beginning.111 Patent rights give the rights holder an opportunity to gain economic and other related profits for a certain period as a pay for the invention. In case of nanotech research and invention there is a need for huge long term investments thus patent rights play a substantial role to recoup the investment of a company. Without a clear and sound patent regulatory system, large companies will be loth to invest in the field of nanotechnology and the development of nanotechnology invention will be hampered. Its no doubt that the rapid gro wth of nanotechnology will result a multiple field of application and jurisdiction and simply will create a legal challenge in future IP regimes. The most basic issue is that whether nanotech inventions are patentable or not? In this chapter the patentability of nanotechnology will be discussed in the light of European legal instruments and the WTO TRIPS Agreement.All inventions are not patentable. A patentable subject matter superpower not be (a) an abstract idea (b) laws of nature and (c) physical phenomena.112 As mentioned, to qualify the patentability of an invention certain conditions must be satisfied.i) patent eligible subject matterii) utilityiii) noveltyiv) non-obviousness andv) sufficient disclosure.In entree to the already mentioned patentability criteria, the claims have to be clear, brief and must be support by the description.113 The application of the inventions requires disclosing the invention is such a way as a entirely that a person skilled in the art is being capable to carry out the invention.114 There are not separate patentability rules for nanotech inventions. Thus any patent connected with the nano-field must fulfill the general requirements of patentability.1153.1 Procedures at the European Patent OfficeIn Europe, an applier can commit a patent application either in the national patent office or in the EuropeEuropean Perspective on Nanotechnology PatentsEuropean Perspective on Nanotechnology PatentsAn Overview of Nanotechnology Patents A European PerspectiveThe future world will to a large extent consist of a knowledge based society. Intellectual property (IP) will play an important role in generating wealth and employment in that society. A general rule is that the more developed a country is the more stricter and secure for IP and strict to uphold the IPR. IP assets have become between 50 and 70 percent of the gross domestic products of a developed country.1 In that sense it can be said that IP has become one of the most impor tant assets of knowledge based economies.2 Creativity is essential to economic growth.3 It is feared that the development of new technologies and thereby the progress of societies will be halted without the presence of intellectual property rights (IPR). IPRs encourage the development of new technologies. IPRs aim at creating a harmonious relationship among investors, inventors and consumers. Patent rights are one of the important branches of IPR. The ultimate goal of patent rights is to promote invention and encourage further development of that invention for the benefit of society.Before going into an in-depth discussion on nanotechnology patents, it will be wise to discuss patent rights. The main aim of patent rights is to protect technological inventions.4 Patents can be seen as the outcome indicators of applied research and technological advancement.5 A patent protects novel and non-obvious ideas and not mere the expressions of those ideas.6 The patent system is meant to protec t technology, actual machines, devices and new chemical, biotechnological/nanotechnological compositions rather than pure concepts.7 The main of the system is to promote the continuation of intellectual community8 and industrial and technological development.Generally a patent may be defined as the exclusive right granted by statute to a party who conceives or discovers a non obvious and novel invention, to use and develop that invention, to prevent others from manufacturing, selling or using the invention for a limited time, which depends on the inventions and jurisdictions. Patent terms are typically from 14 to 20 years.9 The applicant of a patent must show that the invention is eligible subject matter, novel, having industrial application or utility, inventive step and non-obviousness i.e. that the invention is not obvious to a skilled person in the field with ordinary knowledge and lastly adequate disclosure. Its not enough that an invention is new for a company or in a definite country. The described invention must be new in the international context.10 Patent is very important in the intellectual and scientific community because of it relate to their reputation and to enrich their resume. In the sense of commercial sector, it is important because it creates barriers to entry into the market.11The emergence of a new and pioneer technology creates issues and possibilities in perfecting IP rights.12 Like other present technologies, nanotechnology isnt merely a part of a distant future, but is also a significant technology today.13 Its obvious that nanotechnology will be one of the essential technologies of the 21st century which have enough potentiality to create new markets and prosperity.14 Nanotechnologies are treated not as a standalone topic, but as a potential and important approach to develop new materials and accomplishment new properties. Their potential for characterizing and building up nano-structure will meet future goals in nearly all sectors. Nanotechnologies have the merit of joining together chemists, physicists, biologists, medical doctors, sociologists, etc. It has been held that nanotechnology will be one of the largest sectors of economic growth of world in the foreseeable future.15 Such technology will be used in a wide range of products from military weapons to clothing.16 Many multinational companies have already invested huge amounts in the field of nanotechnology. The nano-world is full of surprise and potential.17 As its a nascent technology, it may pose problems and opportunities for IP regimes.18Nanotechnology patents are not treated differently than other patents but it is true that more complex technology creates more complex problem within the patent system. It may be the next legal challenge in the field of IPR. Although early predictions for nanotechnology commercialization are encouraging, however, there are formidable challenges that include legal, environmental, ethical and regulatory questions, as well as emerging thickets of overlapping patent claims. The rapid technological development of nanotechnology will challenge the traditional regulatory system in patent law.19 Another problem will arise to classify the nanotechnology because advanced nano-products may suit into different categories simultaneously.20 One thing is certain, however, nanotechnology is here to stay and will generate both evolutionary as well as revolutionary products in the future, thereby improving all sectors of our life.21 The impact of nanotechnology on our way of life is widely believed to reach profound and hitherto unimagined levels in the coming decades.22Nanotechnology is just passing its early stage in the field of science and very little development has occurred in the legal arena on nanotech. In this thesis, I will focus on legal sides of nanotechnology patents. My overall point of discussion is legal rather than technical. The first part of the thesis will contain a general overview of nano technology from a scientific view point, different governmental and non-governmental organizations approach as well as the importance of nanotechnology from other general aspects. In the second part of the thesis, the relationship between nanotechnology and IPR will be discussed. The third part of the thesis addresses the possibility of patenting nanotechnology inventions. This part also contains a brief description on EU policy towards nanotechnology patents. Finally, the future legal challenges which may face legal experts in the IP field regarding the patenting of nanotechnology products are analyzed.1. What is NanotechnologyTechnological and theoretical improvements have moved us to the place where our knowledge of atomic construction and behavior has significantly improved.23 This advancement enables human to enter the age of nanotechnology.24 Nanotechnology is mainly consists of nano- materials- e.g. carbon nano-tubes, fullerenes, nano-particles, quantum dots, dendrimers, nano -crystalline diamonds, nano-wires, etc.25 According to Eric Drexler, a nano-optimist, nanotechnology can change the world in the way that the steam engine did.26 A proper definition is very important in a field of science and technology, not least for patents.27 It is very important to define nanotechnology from a legal point of view. The world of nanotechnology is a world of individual atoms and molecules.28 Its the science to study and use of the unique characteristics of materials at nano-scale.29 A precise definition of nanotechnology in law and science is yet to be decided. It encompasses many different concepts and fields simultaneously, which is a difficult task. Even scientists in the field maintain that it depends on whom you ask.30 Many experts and different governmental institutions have tried to define the concept of nanotechnology. Generally nanotechnology seems to refer to very small science.31 Technology derives from the Greek tekhne, which means skill or discipline a nd logos which means speech.32 Nano comes from the Latin word for dwarf, but today the prefix is more known to denote one billionth (i.e. one billionth of a metre).33 Therefore nanotechnology could mean the discipline of assembly at the nanometer scale or in other words, molecular assemblage and mass molecular production.34Nanotechnology is an umbrella term used to define the properties or products and process at the nano/micro scale that have resulted from the convergence of the physical, chemical and life science.35 EPO36 defines nanotechnology as followsThe term nanotechnology covers entities with a controlled geometrical size of at least one functional component below 100 nano-metres in one or more dimensions susceptible of making physical, chemical or biological effects available which are intrinsic to that size. It covers equipment and methods for controlled analysis, manipulation, processing, fabrication or measurement with a precision below 100 nano-metres.The U.S. National Nanotechnology Initiative (NNI) predicted in a report issued by the U.S. Department of Energys Office of Basic Energy Sciences, the near term benefits of the developments of this new technology. The White House Office of Management and Budget devised a broader, more functional definition for nanotechnology. It defines Nanotechnology as research and technology development at the atomic, molecular or macromolecular levels in the length scale of approximately 1-100 nano-meter range, to provide a fundamental understanding of the phenomena and materials properties at the nano-scale and to model, create, characterize, manipulate and use structures, device and systems that have novel properties and functions because of their small or intermediate size.37Nobel laureate Richard Smalley defines nanotechnology as the art and science of building stuff that does stuff on the nano-meter scale. Eric Drexler defines nanotechnology as engineering in the molecular scale.38 Some legal expert character izes it as the skillful management of matter at the scale of one billionth of a meter or smaller.39 The US Nanotechnology Act40 defines nanotechnology as the science and technology that will enable one to understand measure, manipulate, and manufacture at the atomic, molecular, and supra-molecular levels.41 Although nanotechnology encompasses many different types of concepts, it can be said generally that nanotechnology is a science to manipulation of matter or things at the scale of nano-meter.42 Nanotechnology covers several established domains and technologies, with the exact definition of what are nanotechnology still being debated.43 1.1 Why is nanotechnology important?Nanotechnology is important in many senses. Nanotechnology will certainly change the nature of almost every human made object in the next century and will reshape out interaction with the surrounding world.44 It covers a multiple fields of science and will create a vital opportunity in the future world. In the vi ew of transformational impact, its a simple fact that it gives us a set of tools that make us enable to transform the world at a far smaller scale than was ever available to us before.45 Nanotechnology enables us to change the structure of many different fields by giving us opportunity to access a realm where many of the old rules associated with matter apply no more.46 Nanotechnology attracts a considerable amount of attention because it gives us opportunity to access to radically different capabilities with wide range of materials, even though we have been using those materials for many years. Nanotechnology will give rise to a wealth of new materials and manufacturing possibilities, which will cause a great impact on our future economy, environment and society. Nest I will address some fields where the application of nanotechnology will have an important impactEconomic ImpactMany economists predict that nanotechnology will be the next economic turning point in the global economy. It may be the issue of every economic sector as it encompasses a large and diverse field. In nearly every economic sector such as health and medicine, materials, computing and electronics, military weapons, environment, energy, transportation and virtually every other commercial sector nanotechnology will play a great role in coming decades considering its numerous fields of applications. Nanotechnology has attracted the worldwide companies vastly. As of 2004, 1500 companies worldwide have declared their plans on nanotechnology research and development and of these 80% were newly startup companies.47 The U.S. National Science has presumed that the world market for nanotechnology will reach 1 trillion USD or more within 20 years.48 According to Lux Research, within next ten years nanotechnology applications will affect nearly every type of manufactured goods.49 The EU recognized nanotechnology as an important element for the benefit of its citizens. In 2007 the European Commission a llocated EUR 600 million for nanotechnology research and development.50 The former president of the United States, George W. Bush signed the 21st Century Nanotechnology Research and Development Act51 on December 3, 2004 authorizing approximately $3.7 billion in federal funding for the development and research of nanotechnology over the next four years.52 According to Mike Honda, California House Representative and co-drafter of the original Nanotechnology Act, the worldwide market for nanotechnology products and services could reach $ 1 trillion by 2015.53 Nanotechnology in food security, environmental and public health issuesNanotechnology will have a great impact on food security and environmental issues. In September 2003, the United States Department of Agriculture published its roadmap and in that report the Department predicted that nanotechnology will change the appearance of food industry, changing the way food is produced, processed, packaged, transported and consumed.54 He lmuth Kaiser Consultancy predicts that the market of nano-food will rise from 2.6 billion USD to 20.4 billion USD by 2010.55 Nanotechnology is capable of changing the agriculture and food industry with e.g. new tools for the molecular treatment of disease, speedy disease detection, raising the ability of plants to absorb nutrients etc..56 Intelligent sensors and small delivery systems will help the agricultural industry combat viruses and other crop disease producing agents.57 There is strong possibility that in the near future nano-structured catalysts will be available which will enhance the competency of pesticides and herbicides, allowing lower doses to be used. In CEA (Controlled Environment Agriculture), nano-technological devices providing scouting capabilities could enormously improve the growers ability to determine the suitable time of harvest for the crop.58 Another important role for nanotechnology-enabled devices will be the increased use of automatic sensors linked int o a GPS system for real-time monitoring. These nano-sensors could be fixed throughout the field where they can monitor soil conditions and crop growth.59 Wireless sensors are already being used in specific parts of the US and Australia. Nanotechnology can help us to improve our understanding of the biology of different crops and thus potentially increase yields or nutritional values.60Nanotechnology has also potential to save our environment indirectly through the use of renewable energy supplies, and filters or catalysts to control environment pollution and clean-up existing pollutants.61 Nanotechnology can also be used to clean ground water. The US Company Argonide uses 2nm diameter aluminum oxide nano-fibres (Nano-cream) as an element of water purifier. This nano-level filtration system helps to remove viruses, bacteria and protozoan cysts from water. Developing countries like India and South Africa are also running similar projects using the same technique.62 Research at the Cen tre for Biological and Environmental Nanotechnology (CBEN) has shown that nano-scale iron oxide particles are tremendously effective at binding and removing arsenic from groundwater,63 which will play a great role especially in the developing countries where environmental pollution is an important factor. The development of nano-technological based remediation techniques can restore and clean-up environmental injury and pollution (e.g. oil in water or soil).64Most of the opposition to nanotechnology has been targeted on the long term risks connected with self-replicating nano-robots. Some environmental groups, e.g. the Action Group On Erosion, Technology and Concentration (ETC) predicts that nano-materials may cause harm to human health and environment. Moreover the group urges to ban the production of nano-materials.65 Besides these, some experts feel worried about impact of nano-particles in the environment and predict that some nano-elements will also be harmful for the environme nt and suggest that there must be a risk assessment authority for nano-particles.Nanotechnology in the medical sectorNanotechnology is a technology which has vast possibilities in the development of health and medical treatment.66 Medical science has made big advances in understanding the structure and functions of living organisms down to the genetic level. Nanotechnology created the opportunity to apply that knowledge significantly more perfect to the diagnosis and treatment of illness and injuries than in the traditional way.67 Nanotechnology applications in medicine are growing significant interest, which can be labeled as nano-medicine. Nano-medicine can be defined as the medical application of nanotechnology that will have potential to lead to useful research tools, advanced drug delivery systems and new ways to combat disease or repair injured tissues and cells.68 The advancement of nano-medicine may result in more significant interventions in respect of illness.69 Nano-medic ine is capable of prevention, early and accurate diagnosis and treatment of different diseases.70 The experts on physical science predict that in future nanotechnology will apply to surgery and to cure different complex diseases in human body. Nanotechnology in military weaponsThe first wave of nanotechnology will primarily be used in the military for state security related purposes.71 Many nanotechnology experts presume that in many states have already taken lots of initiatives in their military sectors and given top priority to research in making nanotechnology weapons and its potentiality at the time of war and other military uses. It should be remembered that the Internet, computer and other land marking inventions of the last century were also military projects and now these inventions have changed the world in every sector and are being used for the welfare of mankind. The ultimate question comes down to whether the good outweigh the bad with respect to the utilization of this technology in this domain.72 Nanotechnology in Information Technology (IT)Nanotechnology has enough potential for creating faster computers with larger memories than the present transistors and other components permit.73 Carbon nano-tubes will also be used in IT. These tubes could be either conducting or semiconducting and have the potential for memory and storage as well. By using nanotechnology, computer tools will be cheaper than today and will create a sustainable IT sector. Without doubt nanotechnology will vastly affect the IT sector in the future.1.2 EU policy for nanotechnologyPresently nanotechnologies strengthen many useful and practical applications and have huge possibilities to improve the quality of life and protection of environment and accelerate Europes industrial competition.74 The European Commission has taken several steps to take nanotechnology research benefits for the development of the EU75. The EU is proceeding toward a collective and correlated strategy fo r nanotechnology research and development.76 The Commission has not yet adopted any broad and specific public policy for nanotechnology but has adopted a strategy plan for the allocation of significant resources for supporting nanotechnology research and development.77 But this strategy has yet not been turned into any formal legislation and/or regulation.78 On June 7, 2005 the European Commission passed an Action Plan for the implementation of a strategy for European nano-science and nanotechnology development.79 This action plan is not obligatory by law and in apparently it is simply a declaration and a step towards regulating nanotechnology further. In this action plan, the importance of research and examining the future impact of nano-science and nanotechnology is emphasised. The Commission have divided the Action Plan into five stepsPromote RD in the EuropeIn this phase, the Commission recognized that by collaborating with public and private sectors across Europe for the resear ch and development of nanotechnology, an interdisciplinary initiative is necessary. In 2007-2008, the Commission invested EUR 2.5 billion under the Research Framework Programme and before that in 2003-2006 EUR 1.4 billion had been invested.80 As nanotechnologies have multidisciplinary character, the Research and Development (RD) projects have taken in different industrial sectors such as health, food, energy, transport, environment, etc.81Frame a base of European Poles of ExcellenceThis phases main aim is to build up poles of excellence into present structures for establishing highly-presentable world class poles in the area of nanotechnology by providing necessary services to the research community.82 State of art equipment and instrumentation is day by day a challenge for the development of nanotechnology and to establish whether RD is enabling to transform into capable of being wealth rendering product and process.83 The Commission is giving support continuously by funding access to present facilities and creating new facilities, which have led to durable integration in the form of new institutes and virtual infrastructure such as the European Theoretical Spectroscopy Facility (ETSF).84Investing in human resourcesThe purpose of this axis is to conforming European educational system to the specifies of nanotechnology in the higher level studies which also cover legal technical subjects such as patenting nanotechnology and encourage the young people in the EU to nanotech studies and research.85 Actually the development of nanotechnology mainly depends upon the skilled manpower and interdisciplinary actions. The main aim of this phase is to transform the nanotech knowledge from academy to industry.86Patronizing the transformation of knowledge into Industrial ApplicationsIn this phase the Commissions strategy and its Action Plan pointed to two issues connected to IP Patents and Standardization.87 In respect of patents, the Commissions Action Plan advocates to e stablish a patent monitoring system for nanotechnology and to harmonize the patent prosecution system especially sufficiency of disclosure and inventive step, (which are crucial in case of nanotechnology patents) among the leading patent offices in the world such as the European Patent Office (EPO), the US Patent and Trademarks Office (USPTO) and the Japan Patent Office.88 Concerning standardization, the Commission encourages pre-normative research and development in combined actions with the activities of European Standard Bodies.89Integrate the Social DimensionThe purpose of this phase is to recall an EU strategy about ethical principles in respect of health, safety and environmental aspects in the development of nanotechnology and making a transparent approach by open dialogues with E.U. citizens and stakeholders.90 The Commission has taken several actions to reflect the peoples expectations and take their views into account.91 In February 2008, EC passed a recommendation of Code of conduct for responsible nano-science and nano-technologies research which gives guidelines towards a responsible and open approach.92 Every proposal considered for funding by the Commission must meet the requirements of ethical issues.93 The Commission is also giving efforts to increase researchers awareness to the Code of Conduct on nanotechnology research. Actually the Commission seeks the nanotechnology research to reflect and comply with the basic ethical values described in the core European Agreements such as the European Charter of Fundamental Rights.2.0 Relationship between Nanotechnology and IPIPRs play a significance role in the development of new technologies. IPRs are essential in the present technology-driven age.94 For an international perspective, nanotechnology is presently one of the most effective new technologies, in terms of number of patent applications.95 Moreover, competitors in the nascent nanotechnology industries employ trade secrets legislation to supp lement their control over key technology and expertise. In spite of being less directly involved in the nanotechnology industry, copyright and trademark legislation are also affect competitors in nanotechnology markets as the companies use computer software for nanotechnology research and development. Moreover, companies are also active to give their products commercial identification and trademark is playing a great role in that respect.IP law yields the primary regulatory vehicle by which ownership, control and use of nanotechnology are managed. The basic purpose of IP law is to facilitate for creators or inventors and encourage continuation of further development and creation. Thus IP law plays an influential role in a new and highly divergent functioning field of research and development like nanotechnology.96 IP law also plays an important role in the integration of nanotechnology development into commercial applications.97 The next part investigates how nanotechnology is relat ed to IPRs.Patent Patent law give legal rights to inventors. For a patent right to be granted certain criteria should be fulfilled such as eligible subject matter, inventive step, novelty and usefulness or industrial application and lastly sufficient disclosure and description.98 Patents are important to protect small, emerging technology business.99 Most business enterprises need a quantity of patent portfolio as insurance towards their already risky investment.100 These criteria are not technology specific and thus should also be fulfilled in case of nanotechnology inventions. As much of the research in nanotechnology has been conducted through multidisciplinary fields, it may challenge the present patent system. For an example, as its a newly adopted technology in the field of science the patent examiner may grant broad patent rights to the inventor which in the future may cause a great barrier in the development of nanotechnology and society may be deprived from the benefits of nanotechnology.Copyright Copyright law protects original expressions of ideas of literary and artistic works but not for the ideas themselves.101 The main key of copyright is the originality of authorship.102 The issues of copyright are mostly likely to arise in respect of nanotechnology regarding computer software programs which is likely to be used for nanotechnology research and development.103Trademarks Trademark rights protect words, logos and any other type of commercial identifiers.104 These marks help the public to identify the respective products or services of a company. It also helps customers from not being misled by deceptive use of marks. As many nanotechnology related companies will come into the market, trademarks will play an important role to identify the different company and their products which is most crucial for investment of a company. Trademarks also indicate the goodwill of the company.Trade Secrets Trade secrets can be defined as confidential information o r knowledge which is not widely known and gives competitive advantages to its owner. Companies may be more interested to keep some information or know-how of their products as trade secrets because under patent law after the expiry of the protection period the product will come into public domain. For trade secrets there is no time limit and business advantages may come from by using trade secret protection wisely, or a combination of patents and trade secrets.The use of different forms of IP offers different options for developers of nanotechnology. While nanotechnology industry is highly patent oriented the possibility of vast legal battles over nanotechnology patents in the future is likely to be happen. It also should be kept in mind that aggressive assertion of IPRs can create obstacles in important research of nanotechnology.105 Patent busting, generics, technical standards and open sources are a few of the leading examples of critical IP challenges to all technology, includin g nanotechnology.106 The challenges of IPR management of nanotechnology are not only for the ownership of IP but also the possibility of huge economic value from nanotechnology.3.0 Patentability of Nanotechnology-European AspectThe recent advancement of industrial research and development in the nanotechnology field is a worldwide phenomenon. Since last few years national and international governmental authorities, research institutes and industrial companies have increasingly aware of nanotechnology as a driving force for innovation in different fields including chemistry, material science, biotechnology and electronics.107 For nanotechnology, patents are the most used and by far most important form of IP.108 Nanotechnology is incomparably among the most patentable technologies, in that it is exceptional in attributes and nascent.109 The main attraction in nanotechnology patenting is not only its size but also its unique cross-industry pattern. Nanotechnology is exceptional compare d with other technologies because it does not originates in a single branch of science like biotechnology, information technology etc.110The main characteristic of nanotechnology is its size. Surprisingly this is nearly the first new field in almost a century in which basic ideas, i.e. the basic building block was patented at the beginning.111 Patent rights give the rights holder an opportunity to gain economic and other related profits for a certain period as a reward for the invention. In case of nanotech research and invention there is a need for huge long term investments thus patent rights play a substantial role to recoup the investment of a company. Without a clear and sound patent regulatory system, large companies will be reluctant to invest in the field of nanotechnology and the development of nanotechnology invention will be hampered. Its no doubt that the rapid growth of nanotechnology will result a multiple field of application and jurisdiction and obviously will create a legal challenge in future IP regimes. The most basic issue is that whether nanotech inventions are patentable or not? In this chapter the patentability of nanotechnology will be discussed in the light of European legal instruments and the WTO TRIPS Agreement.All inventions are not patentable. A patentable subject matter might not be (a) an abstract idea (b) laws of nature and (c) physical phenomena.112 As mentioned, to qualify the patentability of an invention certain conditions must be satisfied.i) patent eligible subject matterii) utilityiii) noveltyiv) non-obviousness andv) sufficient disclosure.In addition to the already mentioned patentability criteria, the claims have to be clear, brief and must be supported by the description.113 The application of the inventions requires disclosing the invention is such a way as a whole that a person skilled in the art is being capable to carry out the invention.114 There are not separate patentability rules for nanotech inventions. Thus any patent connected with the nano-field must fulfill the general requirements of patentability.1153.1 Procedures at the European Patent OfficeIn Europe, an applicant can file a patent application either in the national patent office or in the Europe