One More Patent Jungle – This Time in Nanotechnology?

28 January 2013 Cleantech & Nano Publication

I saw this recent article on the “nanotechnology patent jungle.” The article refers to another recent article on the subject of making nanotechnology research “open-source.” Patent jungles are all around us; the concept is not unique to nanotechnology, and it is important to establish what exactly is a jungle (do you need five or a 100 patents to create a jungle?). Some might call it good business planning when a company elects to try and create a patent jungle against competitors. Indeed, it takes but a single company to create a substantial jungle with a strong patent filing program coupled to R&D. In some cases, one is forced to “take a license” because it seemingly is cheaper to license than to study all the patents with the help of competent legal counsel. Competent legal counsel is needed to really study the impact of a perceived jungle (there might not really be a jungle – just a scare of a possible jungle).

I suspect that in the history of technological development for material things, there are many more examples where important technology is subjected to a lot of patenting, compared to examples where important technology is NOT subjected to much patenting. If you work in patenting long enough, you start seeing the concept of patent jungles being applied to multiple technology sectors (I can, for example, recall hearing about patent jungles with single site polyolefin catalysis or “metallocenes” in the 1990′s). 

In a nutshell, the global patent system, as of 2013, has evolved to where one should quickly file patent applications to protect your technology (even the US is moving to a first-to-file system on March 16, 2013 which suggests a need for fast filing). Then, in the shorter and longer term, one should update on-going reviews for freedom-to-operate in the space of your invention, as part of a larger commercialization strategy. Patent jungles are not unique to nanotechnology and one should do IP due diligence as part of commercial investment.  Nothing too new or unique here, although this is a more interesting discussion when focused on particular aspects of nanotechnology such as graphene or carbon nanotubes. 

One can try to do business in sectors of the economy which are not directly based on technological development, but if you want to work in a sector for which technology innovation is essential for success, then one cannot ignore the patent system, or alternatively, one cannot wish the patent system would go away. 

I do believe government policy makers should monitor patenting and its impact throughout the economy, including nanotechnology. Such past monitoring helped create the drive for patent reform and the move to a first-to-file system in the U.S.

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