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Unpublished Paper
The Irrelevance of Nanotechnology Patents
ExpressO (2015)
  • Emily Michiko Morris

Once the stuff of science fiction, nanotechnology is now expected to be the next technological revolution, but despite millions of dollars of investment, we still have yet to see the brave new world of cheap energy, cell-specific drug delivery systems, and self-replicating nanobots that nanotechnology promises. Instead, nanotechnology seems to be in a holding pattern, perpetually stuck in the status of “emerging science,” “immature field,” and “new technology” for over three decades now. Why? Professor Mark Lemley and a number of others have suggested that the answer to this puzzling question is simple: nanotechnology differs from the all of the technologies that came before it. As the first major new technological field after the Bayh-Dole Act and other related changes, nanotechnology has experienced an unprecedented level of patenting on basic research by universities. Lemley and others argue that these “upstream” patents have created an anticommons that it is stunting nanotechnology development. This Article challenges Lemley’s anticommons story as far too simple, however. For many if not most aspects of nanotechnology development, patenting on university-based research is simply irrelevant. Instead, in nascent but complex fields like nanotechnology, technological and economic uncertainty, long development cycles, tacit knowledge, lack of funding, and even regulatory and safety issues are much more significant and rate limiting than patents are. In this way nanotechnology is not nearly as unique as Lemley suggests – nanotechnology’s developmental difficulties are the same, well-known difficulties that all science-based technologies face.

  • anticommons,
  • patents,
  • nanotechnology,
  • universities,
  • Bayh-Dole,
  • intellectual property,
  • property,
  • biotechnology
Publication Date
April 14, 2015
Citation Information
Emily Michiko Morris. "The Irrelevance of Nanotechnology Patents" ExpressO (2015)
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